Beyond Copyright: Understanding Idea Misappropriation Claims for Writers

While copyright law protects the expression of creative works, it explicitly excludes protection for underlying ideas and concepts. For writers, this creates a significant vulnerability when pitching concepts to producers, publishers, or other industry professionals. Understanding idea misappropriation claims—a distinct legal theory from copyright—can provide crucial protection for your creative concepts during the development process.

What is Idea Misappropriation?

Idea misappropriation occurs when someone uses another's idea without permission or compensation, typically after the idea was disclosed in a confidential or business relationship. Unlike copyright infringement, these claims don't require that the idea be fixed in a tangible medium. However, not all ideas qualify for protection—courts generally require that ideas be novel, concrete, and sufficiently developed beyond abstract concepts. Because the standards and remedies differ widely, recovery for the theft of an idea ultimately depends on state law, underscoring the importance of consulting local counsel with entertainment law experience.

Understanding the Required Relationship

Courts require a confidential or business relationship between the parties. This typically means:

• The recipient solicited the idea for potential business use
• There was an expectation of confidentiality (express or implied)
• The disclosure occurred in a professional context, not casual conversation

Protecting Your Ideas

To protect yourself against idea misappropriation, there must be a special relationship between you and the person receiving your pitch or reviewing your material. The landmark California case Desny v. Wilder (1956) established the framework for protecting ideas through implied contracts, but also warned writers about unsolicited submissions. As the court cautioned: "The idea man who blurts out his idea without having first made his bargain has no one but himself to blame for the loss of his bargaining power." 

1. Deal with Reputable Parties. Research the track record and business practices of individuals and companies before sharing ideas

2.  Create a Paper Trail. Maintain detailed records of including: dates,  attendees at all meetings, written summaries of what was discussed

3. Follow-Up Communications. After pitch meetings, send a follow-up email or note summarizing the discussion and confirming that the meeting was for the possible development of your project.
   

4. Document Your Idea: While copyright registration doesn't protect the underlying idea, documenting your expression through Copyright Office registration or Writers Guild registration establishes a timeline and demonstrates development.

5. Non-Disclosure Agreements (NDAs). In theory, the best way to protect an idea is to have the recipient sign an NDA before you share it. In practice, however, the major players—whether the “Big Five” New York publishers, Disney, or Amazon MGM Studios—will not sign NDAs. In Hollywood the studios rely instead on idea submission policies or boilerplate submission agreements, which typically state that unsolicited ideas become company property or may be used without any obligation to compensate the submitter.

Legal Theories in Idea Misappropriation

Legal protection varies significantly by state or jurisdication, and understanding these differences is crucial for determining where to pursue claims:

Contract Theory (California and other states): Courts may find implied contracts when ideas are submitted with expectation of payment if used. The idea must typically be novel and concrete, and there must be evidence the parties understood compensation was expected.

Property Theory (New York and other states): Some states treat sufficiently novel and concrete ideas as quasi-property, protectable regardless of contractual relationships. After establishing that the idea merits protection as property, the plaintiff must demonstrate that the defendant used it without authorization.

In How to Avoid Reel Legal Problems, attorney James Sammataro observes that some idea submitters try to rely on “industry custom”—arguing that because entertainment companies often compensate for ideas, payment should be implied. He cautions, however, that this is at best a weak argument. Courts do not regard “industry custom” as a reliable basis for misappropriation or breach of implied contract claims, and if that is your only argument, “you’re likely to get the short end of the stick.” That said, if you clearly state when submitting your idea that you expect to be paid if it is used, and the recipient accepts the submission without objection but later exploits the idea, you may have given them enough rope to hang themselves. 

Conclusion

Copyright law provides scant protection for idea submitters, focusing on expression rather than underlying concepts. As Dorothy Parker famously observed, "the only 'ism' in Hollywood is plagiarism." Her wry remark reminds us that while borrowing and imitation may be part of the industry's DNA, they represent ethical lapses rather than legal infringements. Courts don't conflate plagiarism with copyright violation—the former is a question of professional ethics, the latter a matter of enforceable law.

The legal standards for proving idea misappropriation remain demanding, particularly the requirements for novelty, concrete development, and establishing the requisite confidential relationship. 

For writers, this emphasizes the importance of preventive measures—proper documentation, and careful relationship management—rather than relying on litigation as a primary protective strategy. While idea misappropriation claims provide some protection beyond copyright, they remain challenging and expensive to pursue. 

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DISCLAIMER: This article provides general information and should not be construed as legal advice. Laws vary by jurisdiction and specific circumstances. Consult with qualified legal counsel for advice regarding specific situations.

ABOUT THE AUTHOR. Lloyd J. Jassin is a New York publishing and entertainment attorney with 30+ years of experience representing bestselling and first-time authors (and their heirs), literary agencies, and publishers. A former publicity director at Prentice Hall Press (a division of Simon & Schuster), he combines legal expertise with deep industry knowledge.

Mr. Jassin specializes in book contract review and negotiation, manuscript clearance for libel and privacy law compliance, book-to-film/TV deals, brand protection, and complex rights reversions for authors, composers, and literary estates. He co-authored The Copyright Permission and Libel Handbook (John Wiley & Sons) and has been quoted in The New York Times, Wall Street Journal, Forbes, and Time Magazine.

An active member of the publishing community, he has spoken at BookExpo and Publishers Weekly conferences, served as an adjunct professor at NYU Center for Publishing, and previously chaired the Center for Independent Publishing executive committee. He currently serves on the Beacon Press advisory board.

Licensed to practice law in New York and New Jersey, Mr. Jassin counsels clients on all aspects of content creation, copyright, trademark, defamation and privacy law in the evolving entertainment landscape.

Contact: Jassin@copylaw.com | (212) 354-4442 | 104 West 40th Street, New York, N.Y. 10018. With offices in Morristown, N.J. 

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(c) 2025. Lloyd J. Jassin. 

AI vs. Copyright: How Publishers and Author Brands Will Survive the Generative AI Revolution

Generative artificial intelligence is fundamentally challenging copyright law and traditional publishing models. As AI systems create vast amounts of content without human authorship, author and publishers face unprecedented questions about creativity, originality, and intellectual property protection in the digital age.

To understand this disruption, you must first understand the policy behind copyright law. The premise is that without copyright protection, authors would have no incentive to create new works. However, algorithms and artificial intelligence don't require incentives in the same way humans do. This creates a fundamental tension that threatens the traditional copyright framework.

Why Author and Publisher Brands Matter More Than Ever

As publisher Alfred A. Knopf recognized in 1957, "a publisher's imprint means something and that if readers paid more attention to the publisher of the books they buy, their chances of being disappointed would be infinitely less." This insight, which appears in Knopf's The Borzoi Credo, a publishing manifesto first published in The Atlantic Monthly, becomes even more critical in the AI era, where content provenance and brand authenticity serve as essential quality filters for consumers navigating an ocean of machine-generated content.

Unlike book publishers, who generate royalties for human authors, internet platforms prioritize data-driven and machine-learning engagement for advertising revenue. They harness user interactions and behavior to sustain their financial models. As a result, these AI systems can generate vast amounts of content, from good enough to outright toxic, blending fact and fiction without any regard for copyright protections or permissions. For the time being, this glut of AI-generated media poses complex questions about information quality and attribution as well as the boundaries of creativity and originality.

As the volume of AI-generated media increases, the provenance of information will become more important, creating market incentives and consumer demand for publishers and creators who can demonstrate authenticity and high quality.

The Publisher Advantage in an AI World

While addressing the complexities of regulating AI-generated content remains an open question, the established community of publishers has an important advantage in addressing consumer comfort levels as provenance plays a central role in fostering trust and reliability in information. Publishers (with a capital "P"), through selectivity in what they acquire, careful editing, collaboration amongst sales and marketing, publicity, and the payment of royalties, offer a baseline of trust in the data they publish.

Amidst growing uncertainty in consumer trust towards AI, the presence of author brands, publisher imprints, and robust metadata becomes pivotal. These elements act as guiding beacons for consumers, helping them navigate the overwhelming volume of data and identify high-quality works amidst the vast sea of information.

Without trademarks, John Oathout, author of  Trademarks, wrote, "consumers would have no basis for selection or rejection, or any assurance that a particular product is the product they are seeking."

Trademark Protection as a Strategic Response

Unlike copyright law, trademark law can be used to stop the unauthorized use of a bestselling author's name, a series title, symbols, and markings that the public associates with a particular publisher or other source. In this respect, trademark law is an effective cudgel against those who pass off their wares as endorsed by or coming from an established creator, publisher, or producer.

Trademark registration of an author's name, a series title, or a publisher's imprint also opens doors to Amazon's Brand Registry, empowering authors and publishers with takedown tools. The Brand Registry is a quick and cost-effective alternative to litigating unfair competition and right of publicity claims. The hitch is that the name or mark must be registered, which requires showing consumers perceive the name to be a badge for literary services.

The Future of Publishing in the AI Era

While the publishing industry understandably has antagonism towards large language models, the industry will no doubt take an active part in shaping the future of AI, whether through legislation, licensing their books to train AI, creating bespoke AI models with their own curated datasets, and trumpeting the Good Housekeeping Seal of Approval value of their author and publisher brands.

As Norbert Wiener warned in The Human Use of Human Beings (1950), technology left unchecked can reduce people to little more than cogs in a machine. Today, generative AI is undermining the incentives given to authors by copyright law while simultaneously fulfilling copyright's constitutional purpose of promoting "the Progress of Science and useful Arts." This tension will work itself out over time, but we need human editors and publishers for transparency, accountability, and quality control purposes. In an age of generative AI that can masterfully simulate the verisimilitude of human authorship, authentic human curation and editorial judgment become more valuable, not less—making publisher brands and trademark protection essential competitive advantages.

About the Author

Lloyd J. Jassin is a New York publishing and entertainment attorney with 30+ years of experience representing bestselling and first-time authors, literary agencies, and publishers. He specializes in book contract review and negotiation, manuscript clearance for libel and privacy law compliance, book-to-film/TV deals, brand protection, and complex rights reversions for authors, composers, and literary estates. He co-authored The Copyright Permission and Libel Handbook (John Wiley & Sons) and has been quoted in The New York Times, Wall Street Journal, Forbes, and Time Magazine.

Licensed to practice in New York and New Jersey, Mr. Jassin counsels clients on all aspects of content creation, copyright, trademark, and privacy law in the evolving entertainment landscape.

Contact: Jassin@copylaw.com | (212) 354-4442 | 104 West 40th Street, New York, NY 10018. With offices in Morristown, NJ.